Wednesday 16 August 2017 marked the Association of Personal Injury Lawyers (APIL)’s “Injury Prevention Day”. This year APIL’s campaign is centred around encouraging safer driving on UK roads, in turn reducing the number of both low and high speed collisions.

In the UK, we have 50% more traffic on our roads than the European average.

To mark the day, APIL is relaunching its long-running anti-tailgating campaign “Back Off” with a new animated video and graphics to help put stopping distances into perspective for motorists.

Tailgating & Stopping Distances

Drivers are being encouraged to remind themselves of stopping distances and to allow extra space between themselves and the vehicle in front.

APIL have said “Some injuries and subsequent insurance claims could easily be avoided if drivers backed off and left a bit more room. Driving too close, or “tailgating”, is a bad habit of which many drivers are guilty. It is incredibly dangerous as well as antisocial, and can be really intimidating for other drivers”.

Polls previously conducted show that many drivers are unaware of the stopping distances and fail to consider the “thinking distance” before the brakes are even applied.

According to the Highway Code, if a driver is travelling at 30mph the typical stopping distance is 23 metres including thinking time, which equates to 6 car lengths. At 60 miles per hour the stopping distance is 73 metres and the thinking distances is 18 metres.

Braking distances are much longer for larger and heavier vehicles and in wet or icy conditions.

The Road Casualties Annual Report states that the most common factor which contributed to accidents was drivers failing to look properly.

Sanctions

The Government has introduced sanctions to address drivers’ careless actions.

In August 2013, fixed penalty fines of up to £100 and 3 points on the driver’s licence were introduced for motoring offences including tailgating and well as hogging the middle lane of the motorway.

Whilst this is welcomed and highlights that careless driving will not be tolerated much more needs to be done to raise awareness of road safety amongst drivers.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

In April 2015, a new clinical negligence pre-action protocol came into force bringing with it a number of amendments. Pre-action protocols, of which there are currently 13, form part of the Civil Procedure Rules and are intended to set the standards that the courts expect of parties prior to court proceedings being embarked upon, with the purpose of trying to avoid litigation which the courts consider should be a last resort. As such, the protocols are designed to encourage openness and a sharing of information between the parties at an early stage. The protocol applicable to clinical negligence is called the Pre-Action Protocol for the Resolution of Clinical Disputes and it is published on the Ministry of Justice website.

The April 2015 changes to the clinical negligence protocol brought into play a number of new concepts. But have they made much of a difference two years on?

First, there was the Letter of Notification. This is a letter sent by a claimant to a defendant before that claimant has carried out a full investigation into a case, quite possibly even before any expert opinion has been obtained. The Letter of Notification is required to be forwarded by the NHS Trust to NHS Resolution (the protocol still refers to the NHS Litigation Authority, NHSR’s predecessor prior to April 2017) or other medical defence organisation/indemnity provider. The protocol provides a template Letter of Notification. In my experience, the problem with this step is that, at least in NHS cases, and seemingly as a rule, NHS Resolution will not investigate a claim until a formal Letter of Claim is served. Consequently, the Letter of Notification has often fallen on deaf ears.

I tend to serve Letters of Notification in every case in which I consider that it is readily apparent from the outset (as soon after my instruction as possible) that there is a good claim and why that is the case. However, I have on many occasions since the amendments in April 2015 served Letters of Notification based on the medical records and my own internal analysis of the case, often with the benefit of the hospital’s internal inquiry or serious incident report, only to have the NHS Trust/NHSR either not provide any substantive reply (which has been the usual response) or say that they will only investigate once they have received a formal Letter of Claim. Whilst I appreciate that Trusts cannot investigate every potential claim, this stance is usually a significant waste of time and costs and Trusts should be more discerning; having said that, I do have some sympathy as they no doubt receive many Letters of Notification or Claim which never materialise into formal proceedings (a situation not assisted by the Protocol’s stance that there are no sanctions if the subsequent Particulars of Claim differ from the Letter of Claim). Sometimes, though, I have managed to persuade the Trust/NHSR to investigate a case early on the basis of the Letter of Notification, but this has usually been in a case where there has already been a critical internal investigation report provided by the Trust, so there is some objective evidence upon which the Trust/NHSR can rely. Other than providing me with some useful ammunition in costs proceedings to argue about defendant conduct, two years on I feel that the Letter of Notification remains a mechanism lacking teeth.

After the Letter of Notification there follows the Letter of Claim. This is a letter sent by a claimant to a defendant after the claimant has carried out his or her investigation into the case, and is usually prepared with the benefit of expert opinion. As with the notification letter, the protocol provides for a detailed template for a Letter of Claim. This letter is to be copied to NHSR when served on the defendant Trust in NHS cases. Usually a Letter of Claim will be based upon expert opinion (because otherwise in reality it would have much the same standing as a Letter of Notification other than that it should result in NHSR investigating the case without further ado) and, if it is, it should say so and should name the discipline of expert(s). If the Letter of Notification has had no effect on the Trust/NHSR, then I usually obtain expert opinion on breach of duty and then serve a ‘”limited” Letter of Claim, limited in that not all

the expert opinion that is required has been obtained but hopefully enough to demonstrate the likelihood of ultimate success for the claimant, in an attempt to ensure the defendant engages with the claim at that stage. Fortunately, as this letter contains the words “Letter of Claim”, even if preceded by “limited”, it tends to galvanise the Trust/NHSR into investigating the claim properly, as frustrating as the delay to proper investigation may be for the claimant given that there is often little difference between the contents of the notification letter and the limited claim letter.

After the NHS Trust/NHSR’s investigation into the Letter of Claim has been completed, a Letter of Response or Reasoned Response is provided by the Trust, the NHSR or the Trust’s solicitors, or the relevant medical defence organisation. In my experience, these are a mixed bag: unfortunately many of these are still short and lacking in detail, requiring clarification that takes up further time and costs, as well as being a source of frustration to the claimant who will not infrequently end up being more entrenched in their position. There are also realistically few if any sanctions for such letters, notwithstanding they may not have been completed in the true spirit of the CPR. However, occasionally I receive a response that is comprehensive, understanding and well-reasoned, which is welcome not least because it can have a genuine impact on the future conduct of the case.

A Letter of Response is supposed to be served within 4 months of receipt of the Letter of Claim. Defendants usually require more time, certainly in the more complex cases, and it is not unusual for the Pre-Action Protocol not to be completed for 9-12 months post-Letter of Claim, so clients should be warned early on of a potentially long wait. However, from a claimant’s perspective, forcing the pace is not always wise, as not only is it more likely that an early admission will be forthcoming if the defendant has had the opportunity to investigate the claim properly but, if the claim is subsequently defended, the claimant will have a much clearer idea of the defence it likely faces when preparing the formal legal case by way of the particulars of claim if they have had a properly reasoned Letter of Response beforehand.

An interesting amendment in April 2015 related to what happens should the claimant be up against the statutory limitation period before it is possible to complete the Pre-Action Protocol. Whilst the Protocol makes it clear that the statutory time limits are not altered, it does state (paragraph 1.6.1): “If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in the Protocol, the parties should apply to the court for a stay of the proceedings while they so comply”. Use of the word “should” would appear to make this a mandatory, not discretionary, step. Accordingly, if a defendant seeks to force a claimant into issuing proceedings, for whatever reason, prior to completion of the Protocol (rather than voluntarily agreeing to a limitation extension), not only is such conduct likely to be viewed as outwith the spirit of the CPR and against the purpose of the Protocol, but it is in any event likely to have little effect other than to add to the costs because, once proceedings have been issued, it will in then be necessary to apply for a stay of proceedings to allow for the completion of the Protocol. It is difficult to see a court refusing any such request for a stay, so such defendant behaviour would seem to be somewhat pointless and simply incur costs and fuel bad feeling between the parties.

Naturally, Alternative Dispute Resolution (ADR) is encouraged in the protocol with the emphasis on litigation being a last resort. The form of ADR does not matter: be it discussion and negotiation (with or without formal Part 36 offers), mediation, arbitration, early neutral evaluation and/or Ombudsman schemes. What matters is that there are potential sanctions against the party who either refuses to enter into ADR or who is silent on the issue. It seems to me that attempts at ADR must be genuine: I do not consider the all too frequent offer to “drop hands” or proposal to attend mediation to listen to the claimant explain why they have a case to be “genuine” attempts.

Overall, the protocol is, of course, a good thing and, at least from my own experience, pre-action conduct generally has improved since its advent nearly 20 years ago; however, even two years after the amendments in 2015, I feel both that there remains still all too often insufficient engagement with the protocol appropriately early, in particular by the medical defence organisations/insurers rather than the NHSR/NHS Trusts, and that genuinely punitive sanctions for breaching the protocol are too rarely seen, making the process more toothless than it really should and needs to be. Hopefully pre-action conduct will continue to improve, though I suspect it may require some assistance from further amendments in due course.

It is not uncommon for insurers to make offers to entice claimants into early settlement, especially in cases of substantial value, where the stress of dealing with life changing trauma and litigation can be overwhelming, to say the least. And it is no bad thing to settle early, provided that there is sufficient evidence to quantify the claim. The problem, of course, arises when there is little such evidence or the prognosis is uncertain.  In those circumstances, such an offer can lead to a whole host of issues, as happened in one of my cases recently.

My client was injured in an accident at work in the autumn of 2016. The doctors initially thought his multiple lower limb fractures would unite and that he would make a full recovery.  However, unfortunately, my client developed necrosis in the left foot and when surgical debridement, further washouts and larval therapy failed to clear this, he had little option but to undergo a transtibial amputation in the spring of 2017.

My investigations on liability and rehabilitation following the below-knee amputation were still ongoing when the insurers made a time limited Calderbank offer for a six-figure sum. Relying on the case of Stokes Pension Fund v Western Power Distribution (South West) Plc [2005] EWCA Civ 854 they sought to seek costs protection under CPR r.44.2(4)(c) and costs on an indemnity basis, in the event, my client failed to achieve more than that at trial.  CPR r.44.2(4)(c), gives the court discretion to order a party to pay the other party costs in circumstances where costs consequences under the Part 36 rules do not apply.

We had very limited evidence on quantum. My client was now unable to work, with no chance of returning to his pre-accident occupation. He had more than 20 years until pension age and it was necessary to explore a different career path and vocational training once he was in a positon to do so. He also required various types of prosthetics to meet his needs and his accommodation required adaptations. Put simply it was too early to settle.

We were confident that my client would establish liability and beat the offer at trial. We were also confident that the costs consequences under CPR r.44 2(4)(c), would not apply to my client. After all, if the usual Part 36 costs consequences do not apply to a withdrawn Part 36 offer, we could not see how it could be justified in this instance; a pre-issue claim of substantial value with limited evidence on quantum.

Of course, in certain circumstances, a claimant may face costs consequences for a failure to beat a reasonable offer or for late acceptance of an offer, even if there are uncertainties relating to prognosis at the time the offer was made. This was demonstrated recently in the case of Briggs v CEF Holdings Ltd CA (Civ Div) (Gross LJ, Asplin J) 13/07/2017, where the Court of Appeal, on appeal by the defendant, overturned a district judge’s costs order allowing the claimant to recover some of his costs following the late acceptance of a Part 36 offer. It was held “the fact that there had been uncertainty regarding the claimant’s prognosis was part of the usual risks of litigation, and the purpose of Part 36 was to shift the risk to the offeree if he did not accept the offer. It was important not to undermine that purpose.” The usual costs consequences applied. However, each case is, of course, fact sensitive and in Briggs, there was some medical evidence available, though the prognosis was not clear at the time the Part 36 offer was made.

In another recent case of Jordan v MGN Ltd [2017] EWHC 1937 (Ch) the claimant was ordered to pay indemnity costs after late acceptance of Part 36, which he had previously rejected, without good reason, from the date of expiry of the offer. Conduct and failure to negotiate sensibly were two of the factors taken into consideration.

My client accepted this offer posed little or no costs risks to him, but he was dealing with life changing injuries, which had a profound effect on him and his family life. Understandably, despite the potential risk of being under-compensated, he was keen to settle the claim and to move forward. Following negotiations, we were able to secure a seven-figure settlement which he was happy to accept.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The Court of Appeal has ruled that a district judge was wrong in not applying the usual costs consequences to a claimant’s late acceptance of a defendant’s Part 36 offer.

In the recently decided case of Briggs v CEF Holdings Ltd (2017) CA (Civ Div) 13/07/2017, the defendant appealed to the Court of Appeal in respect of the first instance district judge’s order on costs.

The claimant, in that case, suffered an injury to his foot in January 2010 whilst working for the defendant. He obtained a report from an orthopaedic surgeon which stated that his future prognosis was unfavourable.  Proceedings were issued and served by the claimant in January 2012 on that basis.  In September 2012, the defendant put forward a Part 36 offer to settle the claim in the sum of £50,000.  The 21 day period for acceptance expired on 9 October 2012 and the claimant neither accepted nor rejected the offer in that time.  The claimant requested and was granted a stay of proceedings in May 2013 whilst he had foot surgery.  The stay was lifted in April 2014 and he then increased the value of his claim.  A further orthopaedic surgeon instructed by the claimant then prepared a report in October 2014 which had a slightly better prognosis.  At expert discussions stage, the claimant’s orthopaedic expert altered his view and it was agreed that the claimant would probably be able to work to retirement age.  The claim was listed for trial in 2015 but the claimant applied to vacate the trial.  On 9 June 2015, the claimant accepted the defendant’s Part 36 offer of £50,000 made in September 2012.

The rules on acceptance of Part 36 offers and costs are found within Part 36 of the Civil Procedure Rules.  The relevant sections in the Briggs case are as follows:

36.13 

(4) Where—

(a) a Part 36 offer which was made less than 21 days before the start of a trial is accepted; or

(b) a Part 36 offer which relates to the whole of the claim is accepted after expiry of the relevant period; or

(c) subject to paragraph (2), a Part 36 offer which does not relate to the whole of the claim is accepted at any time,

the liability for costs must be determined by the court unless the parties have agreed on the costs.

(5) Where paragraph (4)(b) applies but the parties cannot agree on the liability for costs, the court must, unless it considers it unjust to do so, order that—

(a) the claimant be awarded costs up to the date on which the relevant period expired; and

(b) the offeree does pay the offeror’s costs for the period from the date of expiry of the relevant period to the date of acceptance.

(6) In considering whether it would be unjust to make the orders specified in paragraph (5), the court must take into account all the circumstances of the case including the matters listed in rule 36.17(5).

As can be seen, under r36.13(4), where an offer is accepted after the expiry of the offer period the Court must determine the liability for costs unless the parties can agree.  Under r36.13(5), where the parties do not agree, the court should order that the claimant is awarded his or her costs up to the date of expiry of the offer period and the party whose offer has been accepted should be awarded the costs from the date of expiry of the offer period to the date of acceptance, unless such an order would be unjust.

Therefore, applying this to the Briggs case, the claimant would be awarded his costs up to 9 October 2012 which is when the offer period expired and the defendant would then be awarded their costs from 10 October 2012 to 2 June 2015 which is when their Part 36 offer was accepted by the claimant.

However, the claimant argued – successfully at first instance – that under r36.13(6), the fact that he had an uncertain prognosis in September 2012 when the offer was made should be taken into account because he could not have known at that stage what his claim was likely to be worth.

The judge considered the factors listed in r36.17(5) – see below – and concluded that because of the uncertainty of prognosis, it would be unjust to order the claimant to pay the defendant’s costs from the expiry of the offer acceptance period.  He, therefore, ordered that the defendant pay the claimant’s costs up to 30 October 2014, which is when the second orthopaedic report was obtained.

36.17 

(5) In considering whether it would be unjust to make the orders referred to in paragraphs (3) and (4), the court must take into account all the circumstances of the case including—

(a) the terms of any Part 36 offer;

(b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;

(c) the information available to the parties at the time when the Part 36 offer was made;

(d) the conduct of the parties with regard to the giving of or refusal to give information for the purposes of enabling the offer to be made or evaluated; and

(e) whether the offer was a genuine attempt to settle the proceedings.

The defendant duly appealed to the Court of Appeal on the basis that lack of knowledge about the likely future prognosis of the claimant’s injury was not sufficient to make it ‘unjust’ for the usual cost consequences of Part 36 to apply.

The Court of Appeal held that the general rule was that if an offer was accepted out of time then the offeree should bear the costs of the offeror from the expiry of the offer to the date of acceptance. It was up to the offeree (the claimant in this case) to show that injustice would be caused and it was important not to undermine the purpose of Part 36 offers.  The fact that in September/October 2012 it was difficult for the claimant’s representatives to properly form a view on the likely outcome was part of the normal risks of litigation and there was nothing in particular in the claimant’s case to distinguish it from those usual risks.  The Court of Appeal, therefore, overturned the district judge’s ruling and found for the defendant on costs on the Part 36 issue.

The Briggs case is a salutary reminder for claimant lawyers especially of the operation of Part 36.  It is not enough to say that an uncertain prognosis means that Part 36 should not apply.  Therefore any Part 36 offers received, particularly those which have been made before medical evidence has been obtained, should always be carefully considered and the risk of potential costs consequences should not be under-estimated.

Briggs v CEF Holdings – Lawtel doc

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The Office of Rail and Road shows that a staggering number of rail accidents happen each year, not only causing major disruption but also resulting in injuries, which at times are fatal.

The cause of such accidents can be extremely complicated and claims could potentially be against several different liable parties. For that reason, there are specific provisions that are set out in a mandatory protocol, the “Claims and Handling Allocation” agreement (CAHA).

One of the aims of the CAHA is to ensure that members of the public who have suffered bereavement, injury or loss as a result of a railway accident can make a single claim against any party that is potentially liable. This avoids being embroiled in the often complex legal and contractual relations between the other potential parties.

The CAHA itself declares its aims as:-

• Helping to ensure that third parties with claims against the rail industry are not prejudiced, as a result of the privatisation and division of activities formerly undertaken by the British Railways Board;
• To minimise the scope for, and the time spent on, disputes over the allocation within the industry of liability for third-party claims.

The register states that the agreements seek to meet its aim of protecting third parties by:-

• Avoiding the need to establish which party may be legally liable;
• Avoiding delays in settlement whilst liability is allocated within the rail industry;
• Requiring claims be to handled efficiently and promptly.

I am currently acting in a claim on behalf of a person that was injured in a train derailment and I have recently seen the agreement come into place. Due to its complexity, the cause of the derailment continues to be investigated by the Rail Accident Investigation Branch (RAIB), but one of the parties (under the agreement) has confirmed that they are authorised to compensate the injured person.

Lord Justice Jackson published his second review of the costs of civil litigation on 31 July 2017 and whilst it proposes significant changes, most claimant injury claim practitioners will be relieved he did not go further.

When it was announced in November 2016 that LJ Jackson had been commissioned to review the costs of civil litigation, it appeared the primary aims were to introduce fixed costs into the whole of the fast track, and if possible to impose them on most claims with a value of up to £250,000. Since that time, LJ Jackson has arranged several seminars up and down the country, where there have been arguments for and against such an extension of fixed costs.

Fixed costs were implemented in all fast track injury cases (excluding occupation disease) in 2013. The costs are minimal and make running the claims financially unviable for most firms of solicitors.

In his new review, LJ Jackson has recommended the introduction of a new track for the personal injury claim with a value of between £25,000 and £100,000. He has come up with a catchy new title of the ‘Intermediate Track’. He has not attempted to fix costs for cases valued between £100,000 and £250,000.

The intermediate track will only apply to cases where the maximum value is £100,000, where there will be no more than two experts on each side giving oral evidence at trial, and where the trial duration will be no more than three days.

There will be different amounts of fixed costs payable depending on the complexity of the case. There are 4 bands as outlined below:-

1. Band 1 – For simple a claim just over the fast track limit, with one issue and that any trial will only take a day or less.
2. Band 2 – This will be the normal band for intermediate track cases, normally where quantum and liability are disputed.
3. Band 3 – This will be for cases which are more complex than Band 2 cases, with no explanation provided as to what this may include.
4. Band 4 – This will be for the most complex cases: for example, a business dispute or industrial disease claim where there is a serious point of law to be determined.

Interestingly, claimants will be encouraged to identify the relevant band within their letter of claim or certainly to attempt to agree on them with the defendant pre-action. If no agreement is reached and proceedings are issued, the Judge will deal with the band on allocation. The parties can dispute the band at CMC stage but there is a £300 penalty for the party who challenges the banding and does not succeed.

LJ Jackson recognises that the intermediate track, which pays much lower costs, requires a streamlined process to go along with it. The recommendations include a 10-page limit to statements of case and a 30-page limit to witness statements.

There is a grid of fixed costs payable. For pre-action settlements the level of costs payable as follows:-

Band 1 – £1,400 plus 3% of the damages

Band 2 – £4,350 plus 6% of the damage

Band 3 – £5,550 plus 6% of the damages

Band 4 – £8,000 plus 8% of the damages

The fixed costs also apply to all stages of proceedings, with cumulative amounts being paid depending on the stage reached. For example, if the case reaches trial (with the bundle being prepared) the costs are as follows:-

Band 1 – £5,700 plus 15% of damages

Band 2 – £15,000 plus 20% of damages

Band 3- £16,200 plus 20% of the damages

Band 4- £24,700 plus 20% of damages

LJ Jackson proposes an uplift of 12.5% on these figures if the claimant lives in London and instructs a solicitor practising there. There are separate allowances for barristers for drafting statements of case, conducting conferences, and advocacy at trial.

LJ Jackson “tentatively” proposes that if the claimant beats their own Part 36 offer, their entitlement to fixed costs should be increased by 30% to 40%, rather than assessing their costs on an indemnity basis.

The figures above exclude disbursements but LJ Jackson comments that serious consideration should be given to introducing fixed expert fees as has been done in fast track cases.

I assume LJ Jackson’s recommendations will be introduced and it will be interesting to see how the industry reacts. Claimant practitioners will have to look again at how they prepare these cases whilst making it economically viable to run them. Defendants may choose not to contest certain elements of a claim because doing so may cause it to leave the intermediate track so that they pay higher costs. For example, they may choose not to agree on some expert evidence to avoid the need for more than two experts on each side giving evidence at trial. In addition, I suspect there will be even more use of pre-medical offers by defendants to avoid increasing costs if a case is litigated.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

“I cannot leave the case without making two comments. The case before me for the Defendant was conducted with scrupulous fairness and considerable skill by Mr Evans, and the conduct of his instructing solicitors appeared to me to be most efficient. However…. I am very critical of whoever it was in the Defendant Trust or in the NHSLA who considered that this claim should be resisted on the basis (among others) that the delivery was a straightforward and unremarkable forceps delivery”.

So said the Mr Justice Gilbart in his judgment recently in the case of  JRM v King’s College Hospital Foundation Trust [2017] EWHC 1913 (QB).

In a week in which LJ Jackson has set out his new proposals for keeping costs proportionate in civil litigation, we have the above clinical negligence case.  The media will no doubt seize the new costs proposals as evidence of wrongdoing of claimant solicitors seeking to exploit cases for the maximum profit.  Yet for those of us in practice, the reality is quite different.

The case of  JRM v King’s was clearly exceptional in that it reached trial. However, in many cases, we are finding that NHS Resolution is defending issues which really should not be defended.

An example would be a case of mine in which one of the issues is the failure to provide pain relief up to the patient being anaesthetised.  My client suffers from a rare and extremely painful condition in which effective pain relief is important for his quality of life.

The NHS has claimed the self-administered pain relief system is removed long before a person is taken to the theatre because continuing it is a risk.  The trust concerned can locate no protocol for this and the client (who has had several procedures as a result of his condition) has always had the pain relief system in place up to the theatre door.  The version provided by the NHS is simply not accurate, is not based on any evidence and is not supported by the records. Yet despite my best efforts, this matter will need to be issued at court because it cannot be resolved in any other way.  The cost of so doing will be significant and unnecessary but it is the only way forward.

Another example would be the number of defences I get which are significantly different from the trust’s previous letter of response to the claim.

The system is that a letter of claim is sent out by the patient’s solicitors detailing the allegations of negligence. A letter of response is received some months later setting out the position of the doctor/NHS.  So far so good.  If the response denies liability, proceedings are likely to be commenced with the “particulars of claim” for the court setting out the same allegations as the letter of claim. The NHS then responds with a formal defence again setting out their position. Yet many of these defences are completely different to the letter of response – they often admit some or all of the allegations which were previously denied.

It makes no sense to force claimant solicitors to issue court proceedings if the evidence is clearly there that negligence was involved. This cost of this process is significant and it one which the NHS will ultimately have to bear. If they know they are at fault why not admit it at the start and then the lawyers can deal with the actual issues?  I have several cases where the defence  admits fault after this was denied in the letter of response. The increased costs will be substantial.

Not all NHS Trusts have taken unreasonable stances but there is anecdotally evidence of more need to start proceedings when this should not be necessary. There are of course patients’ solicitors who incur unnecessary costs but resisting cases where the evidence is quite clear is costly and illogical. If the NHS want, as they do, to reduce costs they must also look to what cases they are defending and why.   What is needed is a  more realistic approach to cases where there are problems.  It seems from the JRM case that this is still some way off.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The body image debate is one which women have been having for generations. What exactly is the “perfect body”? In renaissance Italy women were celebrated for their rounded bodies, full hips and large breasts; in Victorian England women were forcing their bodies into corsets, clinching in their waists to create an hourglass figure; in the 1960’s women burnt their bras and fashion models like Twiggy changed the ideal body type from curvy to tall and thin; and now, we have the “Brazilian butt lifts”, the “thigh gap”, the “bikini bridge” and “rib cage bragging”. It is no wonder that when faced with a daily barrage of seemingly unattainable bodies that some women turn to a surgical solution.

In a rarely reported case involving cosmetic surgery, HHJ Graham Wood QC (sitting as a Deputy High Court Judge) was asked to consider what Tracey Giles’ desired body outcome was and whether her surgeon, Alexandra Chambers, had been negligent.

Background

The claimant underwent VASER liposuction removal of fat from her thighs and buttocks. VASER liposuction is described as a minimally invasive treatment aimed at contouring and shaping the body; it uses pulsed ultrasound energy to emulsify the fat cells, which are then aspirated by the surgeon. By comparison, traditional liposuction just sucks out small areas of fat: it is not a two stage process.

By way of background, the claimant spent most of her life working in the beauty profession. She specialises in bespoke treatments involving permanent or tattooed makeup and has established a national reputation in the field. Due to her profile, physical attractiveness is of great importance, and over the years the claimant underwent a number of cosmetic treatments to the face and body.

The claimant first saw the defendant on 26 January 2012. There was a factual dispute regarding the nature and content of the discussions at that meeting. The defendant contended that claimant had asked for a “high definition” sculptured look, whereas the claimant’s evidence was that she had asked for a modest removal of cellulose to create a more feminine look with a thigh gap.

After the initial consultation, the claimant went away to consider the matter further, in the interim she underwent Botox treatment at the defendant’s clinic and eventually the VASER liposuction took place on 20 August 2012. Prior to the procedure, there was a further consultation which the defendant videoed. It was agreed that during that discussion the desired outcome was “more toned up and slender looking thighs and low pole of buttock”.

The actual procedure lasted several hours and it was recorded that 6170ml of fat had been extracted (although the accuracy of this record was disputed by the defendant). After the procedure, the claimant felt extremely unwell, was nauseous and in pain. She was advised to return home, put in a taxi although her legs were bleeding as a result of the procedure, and advised to wear pressure garments.

On 25 August the claimant was admitted to A&E suffering from dizziness and diarrhoea. She was given fluids and painkillers and discharged. On 4 September, whilst being treated at the defendant’s clinic, the claimant was found to have very low haemoglobin levels and was advised to attend hospital for a blood transfusion. She went to a hospital that evening, was given a blood transfusion and had her pressure garments cut off due to suspected compartment syndrome.

The claimant attended the defendant’s clinic for lymphatic massage and also saw another plastic surgeon, Mr Sorensen, for aspiration of the fluid from her legs. Her final appointment with the defendant was on 5 October 2012, at which the claimant expressed satisfaction with the procedure; however, the parties agreed that the true outcome of the surgery could not have been ascertained at this point.

Over the next few months, the claimant began to notice a far different appearance to her legs and buttocks. Her legs appeared to subside and as the swelling reduced, she saw that they had become uneven, bumpy and mottled. She could feel virtually no fat under the skin, just muscle and bone, and there was an obvious asymmetry in her hips. The claimant sought advice from alternative surgeons and embarked upon a program of fat grafting.

Whilst the defendant accepted that the cosmetic outcome was poor she did not accept that she had been negligent. In relation to liability, the court, therefore, had to decide three issues:

1. What type of cosmetic surgery to her legs had the claimant requested and contracted for with the defendant?
2. Was the defendant negligent and/or in breach of duty in the way she performed the cosmetic surgery?
3. If so, had the final outcome been caused or contributed to by any such negligent failures?

Breach of duty

Regarding the first issue, the judge had to weigh and consider the factual and contemporaneous evidence available. The judge did not find the defendant to be a convincing witness. He also noted that her assistant Victoria Virtuso had not been called to give evidence despite the defendant claiming that the errors in the notes were down to Ms Virtuso. Furthermore, the judge considered that it was “extraordinary” and “inconceivable” that the defendant had not recorded the claimant’s desired outcome in her notes when there was ample opportunity to do so, particularly if, as alleged, the defendant had counselled the claimant against her desired look. Finally, the defendant had also failed to produce the photographs which were purported to have shown to the claimant when she was choosing her desired appearance. Such photographs would have been easily available and the inference was that they supported the claimant’s position.

The judge concluded that on balance it was more likely that not that the claimant did not request the sculptured and muscled high definition appearance with the removal of substantial quantities of fat.

Although breach of duty was established, the judge went on to make some general comments.

Expert suitability

There was a dispute between the parties as to the admissibility of the defendant’s expert evidence. The order for directions granted permission for the parties to rely on the expert evidence of a “plastic surgeon”. The defendant’s expert witness, Dr Glancey, was a cosmetic surgeon and accordingly the defendant did not have permission to rely on her. Furthermore, Dr Glancey should have disclosed her relationship with the defendant as it transpired that she rented rooms from the defendant in Wimpole Street and they were also professionally connected through BABS (British Association of Body Sculpting). The judge, therefore, preferred the evidence of the claimant’s expert.

Causation

The court concluded that the starting point had to be that the claimant had been left with an extremely unsatisfactory outcome. Although the defendant argued that the claimant had not proven that the risk would not have materialised in any event, as there are inherent risks involved with a general debulking procedure, the judge considered there was no substance to this argument. The judge concluded that the risks were materially increased by the more extensive and aggressive procedure and he was satisfied on the balance of probabilities that if the claimant had had a measured degree of liposuction applied to selected areas she would not have had this highly unsatisfactory result.

Comment

In a post Montgomery world, it baffles me why clinicians, particularly in an area like plastic surgery which is so subjective, are not keeping accurate and comprehensive notes of their discussions with patients. The defendant, in this case, had the facility to video record consultations, which she did, in fact, do on one occasion, so why did she not do so for that all important discussion regarding outcomes? If the defendant had kept proper notes the outcome of the case may have been very different.

As a patient, particularly one electing to have cosmetic treatment, it is vital that your treating clinician understands your desired outcome. 2016 GMC guidance on Cosmetic Surgery states: “It is essential to a shared understanding of expectations and limitations that consent to a cosmetic intervention is sought by the doctor who will perform it, or supervise its performance by another practitioner.”I would, therefore, urge patients to confirm their expectations in writing as much as possible and to fully explore all possible risks and alternative treatments with their treating surgeon before undergoing any procedure.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Dr Jock Mackenzie provides a round-up of clinical negligence cases in July’s Solicitors Journal.  Please click here to read more.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

I am just coming to the end of acting in a stress at work claim for a former Prison Officer who claimed damages for the psychiatric harm he suffered as a result of his employer’s treatment of him during a prolonged period of suspension. I assisted David Marshall in bringing the matter to a 15 day trial at the High Court before Mrs Justice Thirlwall (now Thirlwall LJ).  Judgment was recently handed down and a copy of the full judgment of Marsh –v- Ministry of Justice [2017] EWHC 1040 QB.  I’m pleased to say that judgment was given for my client and he was awarded just over £286,000 in compensation, well over half of which relates to his lost future pension rights.  The aim of this blog is just to give a flavour of the case and the ‘living hell’ my client Jim went through to achieve justice.  David and I plan to write more substantively about the case in the near future and I will update this blog with relevant links.

It’s worth giving a bit of background information to my client’s suspension.  Jim worked as a Prison Officer at HMP Downview.  This prison has already been the subject of media interest when a governor, Russell Thorne, was found guilty of misconduct in public office following a lengthy police investigation called Operation Daimler.  Mr Thorne had been conducting a sexual relationship with a prisoner (Liliana Garces-Rosero) and a number of other officers were implicated in similar behaviour with prisoners.   In recent media coverage local to the prison the criminal proceedings are well remembered.

Jim had been a firm but fair prison officer with a clear career progression plan and an aim to make Governor grade.  This came to an abrupt end when Jim became caught up in Operation Daimler as a result of Ms Garces-Rosero making false allegations against him.  It appears Ms Garces-Rosero had become frustrated by her failure to manipulate Jim and she decided to exact her revenge by attempting (and ultimately succeeding) in ruining his career.

After being house searched, arrested, interviewed and investigated my client was never charged by the police.  Jim had been suspended by the Prison Service on the same day his house was searched in February 2010.  By September 2010 the police had concluded their investigation into Jim.  However, my client remained on suspension until June 2012.  He had been the subject of 2 internal investigations, both of which found that he had not been guilty of misconduct.  After the conclusion of the second internal investigation Jim was invited back to work but by this time his mental health had suffered to such a degree that he was unfit for work.  He eventually had his contract terminated on the grounds of ill health in May 2013.

Jim was referred to Anthony Gold by his union the Prison Officers Association seeking compensation for the psychiatric harm he had suffered.  The central allegation of negligence was that he had remained on suspension for longer than necessary.  If he had been allowed back to work after the police investigations had been concluded or failing this, when his return would not have interfered with any criminal proceedings, it was argued that he would not have suffered the breakdown that he did and he would have been able to continue with his much-loved career.

The Prison Service defended the claim by not only denying that the length of suspension was unreasonable,  they also accused Jim of being guilty of the misconduct Ms Garces-Rosero had accused him of in the first place.  This was despite the police bringing no charges against him and his being cleared by two internal investigations by the Defendant itself. This was crushing to Jim.  He was faced with defending himself a fourth time.

For now, I will leave it to Nick Hilborne, solicitor and reporter for Legal Futures to comment on the Defendant’s conduct of litigation.  But this overshadows what the case was really about.  In David Marshall’s words

“I am delighted that Jim Marsh has been vindicated by this judgment. What this case was really about was the failure of his employer, the Prison Service, in breach of their duty of care, to look after the mental health of Prison Officers. Instead of that, Jim was left in limbo by them for more than two years, and long after all police investigations into him had been dropped. I hope that the Prison Service will review their health and safety policies and make sure they are properly implemented in future, so that Prison Officers, who already have an incredibly difficult and stressful job, are not let down like this again.”.

Jim is taking small steps to rebuild his life.  He is surrounded by loving supportive family and friends and the future is a lot less bleak than it appeared.

Relevant links:

https://www.12kbw.co.uk/success-andrew-roy-vanessa-cashman-high-court-stress-work-claim-new-discount-rate-applied/

http://www.legalfutures.co.uk/latest-news/senior-judge-berates-government-lawyers-handling-moj-negligence-claim

http://www.croydonadvertiser.co.uk/prison-officer-cleared-after-investigation-into-sex-scandal-at-women-s-prison-wins-right-to-payout/story-30454077-detail/story.html

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*